BREAKING| Supreme Court Delivers Split Verdict On Challenge To Approval For Genetically Modified Mustard Cultivation

Justice Nagarathna, in her judgment, held that the approval given by the Genetic Engineering Appraisal Committee (GEAC) on 18.10.2022 and the subsequent decision dated 25.10.2022 regarding the environmental release of transgenetic mustard are "vitiated" and contrary to the principle of public interest. The judgment noted that the decision was taken in haste, without considering several aspects, including the impact on health.

Justice Nagarathna noted that the FSSAI has not conducted any study on the impact of GM mustard on health. The failure to adequately assess the impact on health and the environment seriously infringes upon intergenerational equity, she observed.

Justice Karol, however, held that the approval given by the GEAC was not vitiated. Justice Karol issued directions for strict monitoring by the Union Government.

Aspects On Which The Judges Agreed

The judges agreed on the following aspects :

Judicial review of the GEAC decision is permissible.

The Union of India has to evolve a national policy regarding GM corps. The policy be framed in consultation with all stake holders, including states, farmers groups etc. For that purpose, the MoEF should conduct a national consultation within the next four months. States shall also be involved.

Union must ensure that all credentials of experts should be scrupulously verified and conflict of interest must be mitigated. Rules to be framed.

In the matter of importing GM food, the provisions of the FSSAI Act should be enforced.

Non-governmental organisation Gene Campaign filed an interim application in its ongoing public interest litigation (PIL), originally initiated in 2004, seeking the strengthening of the regulatory system for genetically modified organisms (GMO). The list of petitioners also included Research Foundation for Science Technology and activist Aruna Rodrigues and food security activist V Ananthasayanan.

Nature In All Her Elements Are Considered Sacred: Justice Nagarathna

In her judgment, Justice Nagarathna underscored the importance of nature. She stated: "Human beings are composed of five elements of nature that teach strength and inspire the formulation of our character. Earth teaches us patience and love. Air teaches us mobility. Fire teaches us warmth and courage. Sky teaches us equality and broad-mindedness. Water teaches us purity and cleanliness”

Faced with the widespread destruction of the environment, people everywhere are coming to understand that we cannot continue to use the benefits of the earth like in past., she added and continued:

“A new ecological awareness is beginning to merge which rather than being downplayed ought to be encouraged to develop into concrete programmes and initiatives.”

The Extent Of Implementation Of Recommendations Of The Committee Constituted By The Court

Pertinently, the Court had, in the year 2012, constituted a technical expert committee (TEC). The TEC had opined that the entire GMO regulatory system in the country was in 'complete disarray' and needed to be set right.

During the hearing, when the Bench had asked the Attorney General for India R Venkataramani if the GEAC (which functions under the Ministry of Environment, Forests and Climate Change) considered the committee's report. The AG replied in the negative, explaining that it was to be considered by the Government and that there was no legal requirement for GEAC to consider such reports.

Regarding this, the Court had expressed displeasure saying “GEAC was not working in vacuum…this court goes to the trouble of appointing a committee…the committee gives a report and there is a dissenting opinion…but nobody takes note of it and the 25 October decision comes…it (report) is lying here in the files…in the records room”.

In its verdict, Justice Nagarathna made it clear that the Court is not adjudicating the competing claims made in the scientific literature about the desirability of GMOs, their impact on increasing crop fields in the short or long term and other subjects that belong to experts.

Taking a cue from this, she stressed on the importance of the TEC report saying, it would result in undermining the earlier orders of this Court.

“I cannot ignore the TEC report, as suggested by the learned AG, for it would result in undermining the earlier orders of this Court, which would be improper approach in the matter.”

Approval By GEAC Was In Gross Violation Of Principles Of Public Trust

Thereafter, she pointed out that a Professor of Delhi University, in the year 2022, wrote directly to the MOEF seeking acceptance of the environmental release of the concerned GM, made in the GEAC meeting.

“On receiving the said communication, immediately comments were sought….On 25.08.2022, the applicant (professor) once again made a representation for the proposal of environmental release of DMH 11 to GEAC….at that meeting GEAC constituted another expert committee to examine the request letter….the reason for constitution of another expert committee is not known or forthcoming. What did the expert committee do? The expert committee took a dramatically opposite view as compared to GEAC with regard to the field demonstration studies on the effect of GM mustard on honeybees….”

Justice Nagarathna explained that while in the 136th meeting of the GEAC it was recommended that this study be conducted prior to the environmental release. However, on the other hand, the expert committee suggested that within two years, post environmental release, the effect of GM mustard on honeybees and other pollinators may be studied and report be submitted to GEAC.

“This conclusion was arrived at by the expert committee based on the examination of scientific evidence available globally… I have given various reasons as to why the decision was not correct. I observed that the principle of public accountability and transparency in State action are applicable to the cases of execution or statutory exercise of power. Every officer in the hierarchy of the State, by virtue of him being a public officer or servant, is accountable for his decisions to the public as well as to the State.”

In view of this, she held that the GEAC approval of 2022 regarding the release of the aforementioned GM mustard variety into the environment was vitiated.

“I also find that the impugned approval was in gross violation of principles of public trust.”

Court Has To Undertake A Balancing Act: Justice Karol

In the beginning, Justice Karol said that this Court is often presented with situations where two competing interests exist and has to balance them. Elaborating, he said that on the one hand, there is a group of concerned and informed organisations and individuals concerned about the potential impacts of new technology, and on the other hand, there is the Government pushing for scientific development.

Decision Of The GEAC Of Conditional Approval Is Not Vitiated

Justice Karol concluded that there is no manifest arbitrariness in the approval granted by the GEAC. In view of this, he said that the procedural gaps would not result in the violation of fundamental rights.

“I conclude the conditional approval leading to field trials and is in line with the governmental approach for scientific temper. The same has been supplemented with the conditions imposed by the expert body….”

He emphasised that GEAC would be responsible for taking all precautions to ensure no contamination takes place.

In view of the above, Justice Karol ordered that the filed testing of DMH 11, pursuant to the conditional approval, ought to continue and cannot be said to be violative of precautionary principles.

Arguments Advanced By The Petitioners

Advocate Prashant Bhushan led the arguments for the petitioners, beginning with an explanation of the dangers posed by genetically modified organisms, particularly when experimented on in open-field trials. Genetic modification is a process by which the gene of a completely foreign organism is inserted into either a food crop or anything else in order to change its characteristics.

To bolster his contentions, Advocate Prashant Bhushan had also referred to the recommendations of a technical expert committee (TEC) constituted by the Supreme Court in May 2012, as well as the 'serious concerns' raised by a parliamentary standing committee. The TEC had opined that the entire GMO regulatory system in the country was in 'complete disarray' and needed to be set right.

The technical expert committee said that herbicide-tolerant crop should totally be banned in India. All we are asking is for the government to follow the recommendations of this committee,” Bhushan told the bench.

Regarding this, the Court had expressed displeasure at Genetic Engineering Appraisal Committee (GEAC) not considering the recommendations of the Court appointed expert committee before taking its decision in October 2022 to release the GM mustard variety into the environment.

Pertinently, the release of the GM Mustard was put on hold after the Court asked the Centre to maintain status quo in November 2022.

Arguments Put Forth By The Union

After the conclusion of arguments on behalf of the petitioners, AG Venkataramani addressed his arguments.

The Centre primarily argued that the scope of enquiry by the court in the instant case was narrow, with the AG contending that the court's intent behind appointing the Technical Expert Committee (TEC) was not to have a view one way or the other on whether the pursuit of scientific research on GM crops is advisable or not.

Relying on a recent study, the petitioners' claim that India is a centre of origin/diversity for mustard was denied. “India's mustard gene pool is very narrow”, the AG said. He also asserted that the bio-safety regime prevalent today guarantees and addresses all concerns and issues.

The AG specifically denied that GM crops have any adverse impact on the soil. It was submitted that large-scale adoption of GM crops has taken place in countries like the USA, Brazil, Australia, etc., which are major producers and exporters of agricultural commodities.

The Centre brought to the attention of the court that GM Mustard has a higher per hectare yield compared to non-GM variety and contended that it was for the petitioners to show the "public interest" in restraining open field trails, which are a mandatory process.

Case Details:

1. Gene Campaign & Anr. v. Union of India & Ors. [WP (C) No. 115/2004]
2. Aruna Rodrigues & Ors. v. Union Ministry of Environment, Forest and Climate Change & Ors. [WP (C) No. 260/2015]